General Principles of Law on the Legal Force of Provisional Measures in International Investment Arbitration

Federico Lenci

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Chapter 2 General Principles of Law on the Legal Force of Provisional Measures in International Investment Arbitration

In: General Principles of Law and International Investment Arbitration

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Federico Lenci

Federico Lenci
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Type:: Chapter

Pages:: 21–44

DOI:: https://doi.org/10.1163/9789004368385_003

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General principles of law are often presented as a quite recent source in public international law. However, since the 19th century international arbitral tribunals applied certain principles which were considered to be the expression of general principles. Such source fulfils an important function in the investment regime as well. Indeed, general principles of law fulfil a ‘gate-keeping’ function by way of a legitimacy control on arbitral rule-making power, meaning that the evolution and/or consolidation of the arbitral case law shall not be incompatible with the principles which are the expression of the main legal systems of the world. An example of such role is given with regard to the issue of provisional measures, in particular their legal force.

In the present chapter it is argued that, despite the departure in ICSID case law from the ordinary meaning of Art. 47 of the ICSID Convention providing for the tribunal’s power to issue merely hortatory provisional measures, such departure is legitimised by ICSID member States’ acquiescence thereto amounting to an informal modification of the treaty – as Prof. Gazzini and Prof. Kolb convincingly argue – and by the fact that it is not incompatible with the principles which are the expression of the main legal systems of the world.

If arbitration is a ‘mechanism with teeth,’ provisional measures are its front teeth.

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General Principles of Law and International Investment Arbitration

Series: Nijhoff International Investment Law Series, Volume: 12

E-Book ISBN:: 9789004368385

Publisher:: Brill | Nijhoff

Print Publication Date:: 18 May 2018

Subjects
- International Law
  - International Law: General Interest
  - International Commercial, Trade & Investment Law

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Chapter 2 General Principles of Law on the Legal Force of Provisional Measures in International Investment Arbitration

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General Principles of Law and International Investment Arbitration

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